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Of Counsel:
DAMON KEY LEONG KUPCHAK HASTERT
Attorneys at Law
A Law Corporation
ROBERT H. THOMAS
rht@hawaiilawyer.com
ANNA H. OSHIRO
aho@hawaiilawyer.com
MARK M. MURAKAMI
mmm@hawaiilawyer.com
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
www.hawaiilawyer.com
Telephone: (808) 531-8031
Facsimile: (808) 533-2242
4610-0
5852-0
7342-0
Attorneys for Plaintiffs
JOSEPH KOSTICK, KYLE MARK TAKAI, DAVID P. BROSTROM,
LARRY S. VERAY, ANDREW WALDEN, EDWIN J. GAYAGAS
ERNEST LASTER, and JENNIFER LASTER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH KOSTICK; et al.,
Plaintiffs,
v.
SCOTT T. NAGO, in his official
capacity as the Chief Election
Officer State of Hawaii; et al.,
Defendants.
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CIVIL NO. 12-00184
JMS/LEK/MMM
THREE-JUDGE COURT (28
U.S.C. § 2284)
PLAINTIFFS’ REPLY
MEMORANDUM IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT;
CERTIFICATE RE: WORD
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LIMITATION (LR 7.5);
CERTIFICATE OF SERVICE
Hearing Date: Jan. 14, 2013
Time: 10:00 a.m.
Judges: Hon. Margaret
McKeown, Hon. J. Michael
Seabright, Hon. Leslie E.
Kobayashi
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS
Page
I.
SUMMARY OF THE ISSUES .................................................... 1
II.
THE STATE HAS NOT SUPPORTED THE MASSIVE
DEVIATIONS IN THE 2012 PLAN............................................ 3
III.
IV.
A.
The State Has Not Proven Hawaii Is So Unique
That Canoe Districts Are Necessary ................................ 4
B.
The State Has Not Addressed Whether The Extreme
Deviations Are Beyond Tolerable Limits ....................... 14
C.
Plaintiffs Have Been Injured, And Correcting The
Deviations Will Remedy Their Injuries........................... 20
THE STATE HAS NOT MET ITS BURDEN TO SHOW A
COMPELLING REASON TO DENY THE FUNDAMENTAL
RIGHT OF EQUAL REPRESENTATION ............................... 20
A.
The State Has Not Shown That Military Populations
Wildly Fluctuate............................................................... 21
B.
The State Has Not Attempted To Extract Easily
Identifiable Nonresident And Nonvoting Classes ........... 23
C.
Administrative Ease Is No Excuse For Singling Out
Particular Classes For Extraction ................................... 27
D.
The Plaintiffs Were Injured By The Extractions ............ 31
CONCLUSION .......................................................................... 33
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TABLE OF AUTHORITIES
Page
CASES
1000 Friends of Kauai v. Dep’t of Transp.
No. 28845, 2009 WL 281949 (Haw. App. Feb. 6, 2009) .............. 9
Bd. of Supervisors v. Blacker, 52 N.W. 951 (Mich. 1892) .................... 7
Brown v. Thomson, 462 U.S. 835 (1983).................................14, 16, 17
Burns v. Richardson, 384 U.S. 73 (1966)......................................21, 22
Carrington v. Rash, 380 U.S. 89 (1965) ........................................28, 29
Chapman v. Meier, 420 U.S. 1 (1975) .................................................. 4
Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) ...................... 31
Connor v. Finch, 431 U.S. 407 (1977) ................................................ 14
Dunn v. Blumstein, 405 U.S. 330 (1972)...................................1, 29, 31
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) .....20, 31
Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163 (2009)............... 13
Heiner v. Donnan, 285 U.S. 312 (1932).............................................. 28
Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992)............ 5, 6
In Re 2003 Legislative Apportionment, 827 A.2d 810 (Me. 2003) ....... 7
Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987)....... 6
Kilgarlin v. Hill, 386 U.S. 120 (1967) .................................................. 4
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TABLE OF AUTHORITIES—CONTINUED
Page
Mader v. Crowell, 498 F. Supp. 226 (M.D. Tenn. 1980) ...................... 7
Mahan v. Howell, 410 U.S. 315 (1972) ...............................1, 14, 16, 17
Reynolds v. Sims, 377 U.S. 533 (1964).................................... 4-5, 9, 14
Rice v. Cayetano, 528 U.S. 495 (2000) ........................................... 2, 13
Sierra Club v. Dep’t of Transp., 202 P.3d 1226 (Haw. 2009)............... 9
Travis v. King, 552 F. Supp. 554 (D.Haw. 1982) ............2, 5, 18, 19, 20
Wilkins v. West, 571 S.E. 2d 100 (Va. 2002) ........................................ 7
OTHER AUTHORITIES
Alaska Reapportionment Map 2011 ................................................. 6-7
Montana Reapportionment Map 2011................................................. 7
Jeffrey S. Passle, D’Vera Cohn,
A Portrait of Unauthorized Immigrants in the
United States (Apr. 14, 2009) ..................................................... 26-27
State of Hawaii’s Memorandum in Support of Motion to Dismiss,
Korab v. Koller, Civ. No. 10-483 JMS/KSC (Sep. 9, 2010).............. 26
U.S. Dep’t of Commerce,
Final Report, 2008 Estimates of Compact of Free Association
(COFA) Migrants (Apr. 2009)..................................................... 24-25
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TABLE OF AUTHORITIES—CONTINUED
Page
U.S. Gov’t Accountability Office,
Compacts of Free Association: Improvements Needed to
Assess and Address Growing Migration (Nov. 2011)...................... 25
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PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
I.
SUMMARY OF THE ISSUES
Hawaii may be different, but it is not so different as to be exempt
from the requirements of the Constitution. The State has not met its
burden of justifying the two major defects in its 2012 Reapportionment
Plan:
1.
It has not shown a “substantial and compelling reason” that
supports its exclusion of 108,767 persons assumed by the State using
“[a]n appropriately defined and uniformly applied requirement” to have
not exhibited the intent to remain in Hawaii permanently. Dunn v.
Blumstein, 405 U.S. 330, 342 (1972).
2.
Nor has the State met its burden to justify the “prima facie
discriminatory” rule against “canoe districts” which results in overall
deviations that exceed the 10% threshold for presuming a plan is
unconstitutional. It has not shown the Senate deviation of 44.22% and
the House deviation of 21.57% are “minor” deviations that advance a
rational state policy and do not otherwise “exceed constitutional limits.”
Mahan v. Howell, 410 U.S. 315, 328 (1972). The no “canoe district” rule
results in “basic island units” being considered more important than
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persons, which “emasculate[s] the goal of substantial equality” and
violates the Equal Protection Clause. Travis v. King, 552 F. Supp. 554,
560 (D.Haw. 1982) (citations omitted). The State has attempted to
justify this policy by relying heavily upon our geographical, political,
and cultural differences—differences that supposedly subject Hawaii to
rules different than those applicable to every other state in the union.
But, as Justice Kennedy reminded, “[t]he Constitution of the United
States, too, has become the heritage of all the citizens of Hawaii,” Rice
v. Cayetano, 528 U.S. 495, 524 (2000), and it is time that the State
understand that the mere fact that we live on islands must yield to the
Equal Protection Clause, and cannot be used to justify depriving
residents of equal representation on a per-person basis. The ruling in
Travis striking down the no “canoe district” policy was not an
experiment that the State is free to reject as unpopular, but a
Constitutional mandate that must be enforced.
This Reply Brief supports the Plaintiffs’ motion for summary
judgment (Doc. 67) and responds to the State’s opposition brief (Doc. 72)
with two main points:
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1.
deviations
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The State has not met its burden to justify the massive
in
the
overall
ranges
in
the
Senate
and
House
reapportionments. We reply to this argument first because the State’s
opposition brief (Doc. 72) spends a majority of its pages attempting to
prove that Hawaii is so different that the no “canoe district” rule passes
muster under the Equal Protection Clause.
2.
The State has not met its burden of showing that the
exclusion of nearly 8% of its actual population furthers a compelling
state interest and is narrowly drawn.
II.
THE STATE HAS NOT SUPPORTED THE MASSIVE
DEVIATIONS IN THE 2012 PLAN
The State attempts to support the no “canoe district” rule and
justify the 2012 Plan’s representation of “basic island units” instead of
“persons” with exhibits that purportedly show that Hawaii is
geographically and culturally different from every other state in the
union. Thus, the State argues, the resulting deviations in the 2012
Plan—44.22% in the Senate and 21.57% in the House—do not fail the
Supreme Court’s test for constitutionality even though they wildly
exceed the Court’s 10% threshold. This argument fails for two reasons:
first, the State has not met its burden to show that Hawaii is so unique
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that “canoe districts” are absolutely necessary; and second, the State
has not even attempted to show that the gross deviations are “beyond
tolerable limits.”
A.
The State Has Not Proven Hawaii Is So Unique
That Canoe Districts Are Necessary
The State has not met its burden of submitting introduce evidence
overcoming the presumption of unconstitutionality which is the result
of the 2012 Plan’s deviations exceeding 10%. See Kilgarlin v. Hill, 386
U.S. 120, 122 (1967) (“[I]t is quite clear that unless satisfactorily
justified by the court or by the evidence of record, population variances
of the size and significance evident here [26.48%] are sufficient to
invalidate an apportionment plan.”); Chapman v. Meier, 420 U.S. 1, 22
(1975) (“We believe that a population deviation of that magnitude
[20.14%] in a court-ordered plan is constitutionally impermissible in the
absence of significant state policies or other acceptable considerations
that require adoption of a plan with so great a variance.”).
First, the no “canoe district” rule flies in the face of the Supreme
Court’s decision in Reynolds which held that “[l]egislators represent
people, not trees or acres. Legislators are elected by voters, not farms or
cities or economic interests.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
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The 2012 Plan, however, chooses “basic island units” as the primary
measurement of what is being equally represented.
Second, Hawaii is not so unique that it is simply impossible to
produce a reapportionment plan that better represents persons and
produces deviations that at least are closer to the 10% threshold. This
court need look no further than the plan Hawaii implemented to comply
with this court’s ruling in Travis for an example of a plan that is
constitutional.
In response, the State argues that Hawaii’s geography and history
immunize it from such review, and that it is so different from the other
49 states that it need not adhere to the Constitution as closely as they
do. Yes, Hawaii has islands, and having “canoe districts” would mean
that a representative would need to travel across water to represent his
or her district on more than one island. But that is insufficient
justification for failing to adhere to Equal Protection principles, and
does not excuse the 2012 Plan’s severe deviations from population
equality. In Hickel v. Southeast Conference, 846 P.2d 38, 46-47 (Alaska
1992) the Alaska Supreme Court acknowledged that it might be difficult
to apportion to account for islands, and that other factors such as
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compactness and socio-economic congruity may be considered. But the
mere fact that islands are involved does not excuse the state from trying
to accomplish population equality, and one factor the Alaska courts use
is the availability of air service between the disparate parts of the
district. Kenai Peninsula Borough v. State, 743 P.2d 1352, 1361 (Alaska
1987). Similarly, every island in Hawaii is served by regular airline
service, and it is a fact of modern life that we can communicate easily
worldwide and nearly instantaneously, as well as travel interisland
with relative ease; we no longer need canoes.
Indeed, other states could easily claim to have more pronounced
geographical and cultural differences than the supposed differences
between Hawaii’s islands. Yet these states produce plans in which
districts span geographic, cultural, and political boundaries. Alaska, for
example, does not impose a “no kayak district” rule, despite the obvious
fact that several of its districts span islands, insular in nature, that are
separated by deep water, with different cultures on each. See Alaska
Reapportionment Map 2011.1 See also Hickel, 846 P.2d at 45-47
(absolute contiguity is impossible in Alaska owing to archipelagoes); In
http://www.akredistricting.org/Files/AMENDED_PROCLAMATION/
Statewide.pdf.
1
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Re 2003 Legislative Apportionment, 827 A.2d 810, 816 (Me. 2003)
(islands pose contiguity challenges); Wilkins v. West, 571 S.E. 2d 100,
109 (Va. 2002) (intervening land masses pose challenges to contiguity
principles, not intervening water). Similarly, other states treat islands
or land masses divided by rivers as being contiguous as if the water did
not exist. See Mader v. Crowell, 498 F. Supp. 226, 229-30 (M.D. Tenn.
1980) (river dividing district does not violate contiguity principles of
reapportionment); Bd. of Supervisors v. Blacker, 52 N.W. 951, 953-54
(Mich. 1892) (state constitutional requirement of contiguity satisfied by
grouping islands although “separated by wide reaches of navigable deep
waters”). Other states combine political districts which encompass
cultures that are at the very least as diverse as those found on the
several Hawaiian islands. See, e.g., Montana Reapportionment Map
2011 (encapsulating Indian reservations within disparate counties).2
http://leg.mt.gov/css/publications/research/past_interim/handbook.asp
(“Although the Indian population in Montana is highly concentrated in
a few counties, Indians live in all 56 counties of the state, ranging from
a small percentage of less than 1% in 19 counties to 1% to 10% of the
population in 29 counties. There are eight counties in which Indians
compose from 11% to 56% of the total population.”).
2
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The State also ignores the fact that its rule is not inviolate, and
the “basic island unit” of Maui includes the islands of Maui, Molokai,
Lanai (and uninhabited Kahoolawe). If the bodies of deep water and
historic, cultural, and political differences between these islands that
surely must also exist can be overlooked to achieve a cohesive and
acceptable district that spans more than one island, why is it that such
differences become intolerable with respect to the rest of the state? The
State has not answered this question, except by asserting that “canoe
districts” are unpopular. But popularity is not the measure of
compliance with the Constitution.
The State makes spurious arguments that the people of one island
are just so culturally and politically incompatible with those on the
others that they would never tolerate sharing a representative. For
example, the State argues that if the residents of Kauai had a
representative whose district included residents of another island, that
representative would have been conflicted about whether to oppose the
Superferry. See Doc. 72 at 29-30.3 According to the State, this
For the benefit of Judge McKeon who may not be as keenly attuned to
local issues as Judges Seabright and Kobayashi, the “Hawaii
Superferry” involved a controversial attempt by a private service to
3
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representative would have divided and conflicting interests to contend
with, because the residents of Kauai were against the Superferry, while
the residents of other islands were for it. This argument should be
rejected for two reasons.
First, local parochialism is never a valid state interest. The State’s
argument assumes wrongly there is some inherent rationality in a
reapportionment plan that attempts to insure that a representative
does not have diverse interests to represent, but instead that a plan
must strive to allow a representative to have constituents who think
alike
about
a
particular
issue.
This
of
course
is
nonsense;
representatives routinely deal with constituents who have diverse
political and cultural viewpoints, because they represent people, not
“interests.” Reynolds, 377 U.S. at 562.
Second, putting aside the issue of whether these assumed
generalized facts are even true (that Kauai residents generally opposed
operate high-speed vehicle ferries between Oahu and Maui, and Oahu
and Kauai. Legal challenges by Maui residents and the Sierra Club
eventually shut down the service permanently after two visits to the
Hawaii Supreme Court. See Sierra Club v. Dep’t of Transp., 202 P.3d
1226 (Haw. 2009). The separate legal challenge to the Superferry filed
by Kauai residents was dismissed, although the ferry’s visits to Kauai
were met with protests. See 1000 Friends of Kauai v. Dep’t of Transp.,
No. 28845, 2009 WL 281949 (Haw. App. Feb. 6, 2009).
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the ferry, while residents of other islands did not), this argument has it
backwards because it fails to recognize that a Kauai “canoe district”
might actually increase Kauai’s representation, by giving Kauai a share
of an additional legislator to hear minority or other concerns. Kauai,
you see, has 67,091 residents, which means that were “canoe districts”
used, Kauai would be apportioned one Senator and part of a second, and
two Representatives and part of a third. However, under the no “canoe
district” rule, Kauai is deprived of this extra representation. Are those
who live on Kauai so irreconcilably “different” than those who live, say,
in Leeward Oahu that it justifies depriving Kauai residents of 20% of a
representative? The State’s backwards characterization of Hawaii’s
culture is not grounded in history or evidence. The “evidence” that the
State submits is a double-edged sword that could be tailored to justify
nearly anything. It essentially asks this court to make factual findings
that residents of Kauai are irreconcilably different than residents of all
other islands, and that the twain shall never meet.4
One might just as easily claim that cultural history demonstrates
that the two islands share a common heritage, because according to
legend, Pohaku o Kauai (“Rock of Kauai”) located off Oahu’s Kaena
Point is a chunk of Kauai which the demigod Maui snagged with his
fish hook and dragged over to Oahu.
4
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Refuting the State’s argument is the fact that Hawaii residents
appear to be overwhelmingly politically homogeneous, and have few
differences: they voted for the Democratic candidate in the last
presidential election by a landslide, the State’s entire congressional
delegation are members of the Democratic Party, major Republican
candidates for federal office were resoundingly defeated, and there is
but a single Republican in the State Senate. This is not to make a value
judgment about these facts, just to observe that the residents of Hawaii
certainly seem to have much more in common than the State argues.
The State offers various declarations of former representatives of
canoe districts as supposed proof that it is difficult to represent citizens
in North Kauai and Hana. The Plaintiffs have two responses. First, of
course it may be difficult to represent Hana, a locale hard to reach from
just about everywhere, and whose residents, because of their isolation on
the far side of Maui—accessible only by air, the famous Hana Highway,
or a harrowing four-wheel drive journey—likely do not share common
interests (as the State defines them) with anyone, even other Maui
residents. But “difficulty” is not the standard by which compliance with
the Equal Protection guarantees is measured. Second, by drawing the
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district in such a manner that made it about as difficult as possible for a
representative (the northwest side of Kauai was put together in a
district with the far east side of Maui), this district was destined—
perhaps even designed—to disappoint. Those earlier commissions might
have created districts that were easier to travel between, and that had
more in common, but instead lumped North Kauai together with Hana
(rather than putting North Kauai with Leeward Oahu, or putting two
areas near airports together, for example).
Ultimately, the purported differences between Hawaii residents
that the State seeks to enshrine as the hallmark of equal representation
are the last vestiges of an earlier time when we were not so
interconnected, but the islands were separate and parochial.5 Hawaii is
different, for sure. But residents of other states that do not find it
impossible to adhere to the Equal Protection Clause’s requirements
probably also feel the same way about their respective states and the
geographic and cultural divides within them. Regardless of Hawaii’s
geography and culture and its desire to be subject to different
Indeed, the State’s argument that Hawaii has a strong central state
government and relatively weak county governments, cuts against its
arguments that each island is politically separate, rather than for it.
5
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standards, it must still adhere to the Equal Protection Clause. As the
Court reminded when presented with the argument that Hawaii’s
history somehow made it exempt from the Constitution:
When the culture and way of life of a people are all but
engulfed by a history beyond their control, their sense of loss
may extend down through generations, and their dismay
may be shared by many members of the larger community.
... Likewise, as the State of Hawaii attempts to address these
realities, it must, as always, seek the political consensus
that begins with the sense of shared purpose. One of the
necessary beginning points is this principle: The Constitution
of the United States, too, has become the heritage of all the
citizens of Hawaii.
Rice v. Cayetano, 528 U.S. 495, 524 (2000) (emphasis added). When
arguments of the kind the State makes in the case at bar have been
presented to the Supreme Court (Hawaii is “different” and can be
treated differently), that Court has rejected them. See, e.g., Hawaii v.
Office of Hawaiian Affairs, 556 U.S. 163 (2009) (unanimous Court held
that resolution in which Congress apologized for the overthrow of the
Hawaiian government had no legal effect, and did not prohibit the State
from acting in a sovereign capacity to alienate its land): Rice, 528 U.S.
at 511 (rejecting the State’s argument that Hawaii’s unique history
entitled it to
an exemption from the Fifteenth Amendment’s
requirement of race-neutral voting).
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The State has not even attempted to explain how its no “canoe
district” rule—which subsumes equal representation in the state
legislature for persons, to an island-by-island identity—does not fly in
the face of the Supreme Court’s longstanding rule that geographic and
political concerns and the desire to maintain traditional boundaries
must place second to population equality. See Reynolds, 377 U.S. at 56061 (“the fundamental principle of representative government is one of
equal representation for equal numbers of people, without regard to
race, sex, or economic status, or place of residence within a state”)
(emphasis added).
B.
The State Has Not Addressed Whether The Extreme
Deviations Are Beyond Tolerable Limits
Even if the State has met its burden of showing the no “canoe
district” rule and the deviations are the result of a rational state policy,
it does not address the third requirement of the Mahan test, that the
deviations do not “exceed constitutional limits.” Mahan, 410 U.S. at
328. The State misreads the Supreme Court’s requirements regarding
permissible deviations, arguing that the Court holds there are no upper
limits on maximum population deviations. See Doc. 72 at 17 (citing
Brown v. Thomson, 462 U.S. 835 (1983)). To the contrary, the Court
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holds
that
a
10%
deviation
is
a
threshold,
above
which
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a
reapportionment plan is presumed unconstitutional. Connor v. Finch,
431 U.S. 407, 418 (1977) (“deviations of 16.5% in the Senate districts
and 19.3% in the House districts can hardly be characterized as de
minimis; they substantially exceed the ‘under-10%’ deviations the Court
has previously considered to be of prima facie constitutional validity”).
The 2012 Plan expressly recognized this, and the State cannot now
argue otherwise. See 2012 Plan at 9 (2012 Plan is “prima facie
discriminatory and must be justified by the state”); Brown, 462 U.S. at
842-43 (10% threshold).
Indeed, the rule is precisely the opposite of the State’s argument,
and the Court holds that some deviations are simply too extreme and
can never be justified, because there are “tolerable limits” for any plan
that deviates from the requirement of substantial population equality.
Mahan, 410 U.S. at 328 (although “the 16-odd percent maximum
deviation that the District Court found to exist in the legislative plan
for the reapportionment of the House. ... may well approach tolerable
limits, we do not believe it exceeds them.”) (emphasis added); Brown,
462 U.S. at 849 (O’Connor, J., concurring) (“there is clearly some outer
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limit to the magnitude of the deviation that is constitutionally
permissible even in the face of the strongest justifications”). Thus,
regardless of the claimed justification for population deviations between
districts, ultimately the State has not answered whether the 2012
Plan’s deviations are “within tolerable limits.” Mahan, 410 U.S. at 326
(emphasis added). Noticeably absent from the State’s opposition is any
reference to any case in which a deviation of the magnitude in the case
at bar was sanctioned by the Court, and indeed, there are none.
The only case the State claims to support its argument is Brown,
which a close reading reveals provides no such justification. In that
case, the Court pointedly observed that it was not being called upon to
adjudicate whether the deviation at issue in the case (89%) was
constitutionally acceptable:
Here we are not required to decide whether Wyoming’s
nondiscriminatory adherence to county boundaries justifies
the population deviations that exist throughout Wyoming's
representative districts. Appellants deliberately have limited
their challenge to the alleged dilution of their voting power
resulting from the one representative given to Niobrara
County. The issue therefore is not whether a 16% average
deviation and an 89% maximum deviation, considering the
state apportionment plan as a whole, are constitutionally
permissible. Rather, the issue is whether Wyoming’s policy of
preserving county boundaries justifies the additional
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deviations from population equality resulting from the
provision of representation to Niobrara County.
Brown 462 U.S. at 846 (emphasis added). The State fails to recognize
the third Mahan requirement, and its briefs simply do not address the
need for substantial population equality, or the cases in which the
Court has found that the deviations were just too large to accept.
Chapman, 420 at 22 (“While (m)athematical exactness or precision is
not required, there must be substantial compliance with the goal of
population equality.”) (internal citation and quotation marks omitted).
Instead, the 2012 Plan admittedly bases the apportionment on
other factors such as insuring that each “basic island unit” is
represented by a whole number of Senators or Representatives (the no
“canoe district” rule), and, in the most blatant example of ignoring the
Court’s and the Constitution’s requirements, attempts to minimize the
deviations in each chamber by combining them in an attempt to show
that over- or under- represented districts are not impacted as severely
because they have substantial equality “per legislator” —
[E]quality of representation as it related to reapportionment
among the basic island units has been measured by
determining whether the total number of legislators (both
house and Senate) representing each basic island unit is fair
from the standpoint of population represented per legislator.
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2012 Plan at 21-22. The “per legislator” combination approach of
measuring equality was rejected as unconstitutional in Travis, yet the
State persists. See Travis, 552 F. Supp. at 563 (“The state is unable to
cite a single persuasive authority for the proposition that deviations of
this magnitude can be excused by combining and figuring deviations
from both houses.”). It also flies in the face of the fact that Hawaii has a
bicameral legislature, and the Equal Protection Clause requires
measuring substantial population equality in each house, not by a
method that even violates the states’ own constitutional structure, and
is based on equal representation for an “island unit,” not for its people.
Finally, the State cannot explain by what authority it revisited
the issue of canoe districts in the first place. The last time the State
attempted to justify its claim of basic island unit representation was in
Travis in 1982. In that case, the State’s argument for its no “canoe
district” rule was roundly rejected by this court as a matter of federal
constitutional law, because the deviations in that plan were simply too
high. In that case, the State made the same arguments about cultural
and political expediency it is making here, and this court rightly noted
the same observation that is applicable today: “In light of the many
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post-Reynolds decisions which have discussed and refined the concept of
minimal population deviations, however, it cannot be seriously
contended that the gross deviations presented in the 1981 Plan qualify
as “minor inequities.” Travis, 552 F. Supp. at 563. As here, the State in
Travis was unable to cite a single case for the proposition that
deviations of magnitudes present could be excused by combining and
figuring deviations from both houses. Id. at 562. This court accordingly
held “that the total deviation present in the senate reapportionment
plan [43.18%] exceeds the limitation allowable under the equal
protection clause.” Id.
The Travis court was not merely urging the State to “try out”
canoe districts and experiment in good faith to see if they were
acceptable, with the State being free to discard canoe districts if it
found them unpopular. Rather, it was a definitive finding by a federal
court, applying the requirements of the Equal Protection Clause, that
there are constitutional limits to population deviations and at 43.18%,
these limits are exceeded and not justified by the State’s reasons. Yet in
the 2012 Plan, the deviations are similar and the State’s reasons have
not changed. The State has not provided any explanation why, given
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the clear holding of Travis, that the State has chosen to thumb its nose
at a still-controlling court ruling and adopt an apportionment plan that
replicated
the
deviation
previously
rejected
by
the
court
as
constitutionally impermissible regardless of any claimed justification.
C.
Plaintiffs Have Been Injured, And Correcting The
Deviations Will Remedy Their Injuries
The Plaintiffs are Oahu residents, and the State claims that only
Kauai residents haves standing to raise the issue of the gross deviations
in the 2012 Plan. However, each of the Plaintiffs has been injured and
has standing to raise the claim. In the Kauai “combined” process noted
above, the Commission allowed Kauai to be overrepresented in the
House in exchange for Kauai’s underrepresentation in the Senate. The
“extra” Kauai House seat was taken away from Oahu, which injured in
fact Oahu residents, who therefore have standing.
III. THE STATE HAS NOT MET ITS BURDEN TO SHOW A
COMPELLING REASON TO DENY THE FUNDAMENTAL
RIGHT OF EQUAL REPRESENTATION
The State of Hawaii does not contest that equal representation is
a fundamental right. Garza v. County of Los Angeles, 918 F.2d 763, 774
(9th Cir. 1990). The Equal Protection Clause’s fundamental premise is
that all “persons” are entitled to a voice in government. This right
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cannot be denied to military, their families, and students, without
inquiry into why it is necessary that these groups be so deprived, and
whether the state is justified in unequally enforcing its claimed rules.
A.
The State Has Not Shown That Military Populations
Wildly Fluctuate
The State cannot dispute that by defining “permanent resident” to
exclude military and their families and students, these people are left
without representation in any state legislature, because the Census
counted them nowhere else but as residents of Hawaii. The State
argues that Burns v. Richardson, 384 U.S. 73 (1966) sanctioned
exclusion of military personnel based upon assumptions which not only
appear to have been incorrect when first made, but are certainly no
longer applicable today. The State does not dispute this other than to
claim the military still comprises a significant percentage of Hawaii’s
population, and because of this, and because other “non-resident”
groups are too difficult to count, the military (and students) can be
constitutionally singled out and excluded from representation in the
Hawaii legislature.
This is not the point: the justification for exclusion in Burns was
the unpredictable fluctuation in military populations that might have
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skewed
the
population
numbers
upon
which
the
PageID
State’s
reapportionment plans were based. This skewing, along with the
transient “mindset” of tourists and sailors passing through the islands
without sufficient interest in local politics to warrant inclusion thus
militated against inclusion. But as detailed in the Plaintiff’s briefs filed
earlier in this case (Docs. 67 and 74), neither assumption holds true
today.
Plaintiffs have already demonstrated the relative stability
Hawaii’s military population over the course of the last few decades,
through military engagements, through war, through terrorist attack
on the homeland. The State’s sole answer to this is to point out that
some portion of approximately 3,000 troops being relocated from other
countries may end up in Hawaii. Doc. 72 at 8, n.8. Even if this
relocation were to come to pass, however, it is a far cry from the
hundreds of thousands of military personnel cited in Burns, and
considering the growth in the Hawaii population generally since Burns
was decided, this number barely registers as a blip on the overall
population radar. See Doc. 67 at 22-23. Moreover, it does not even
approximate the fluctuations in growth from Hawaii’s burgeoning
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immigrant population. See Doc. 36 at 12. As to the contribution of the
military to the islands, the State cites this Court’s finding that the
military represents a “significant and welcome presence” in the island.
Doc. 72 at 8.
B.
The State Has Not Attempted To Extract Easily
Identifiable Nonresident And Nonvoting Classes
Ultimately, the State’s argument justifying extraction of military,
their dependents, and students is predicated upon a “lesser of two evils”
proposition—it has subordinated these individuals’ rights to equal
representation to its attempt to accommodate the constitutional
principal of equal voting power. The State argues that because military,
their families, and students are (1) numerous; (2) identifiable, and (3)
largely non-voting their inclusion would skew voting populations in an
identified district and negatively affect the right to equal voting power
of Hawaii voters, and therefore it is proper to exclude them. This
argument fails.
First, the mere fact that servicemembers, their families, and
students exist in large numbers in Hawaii and largely do not vote does
not mean they can be deprived of equal representation without a
showing of compelling interest by the State. As we pointed out in our
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earlier briefs, huge swaths of Hawaii’s population do not vote, as
evidenced by Hawaii’s dismal voting percentages, currently dead last of
all the states for voter participation. The State cannot single out specific
groups for exclusion because they do not vote when the population at
large also by and large does not vote either. Moreover, there are specific
and countable groups that also do not (and cannot) vote. Where is this
concern with respect to other non-voting groups who, under the State’s
theory, are subject to exclusion?
For example, by virtue of the Commission’s use of the census
report and by virtue of its decision to only exclude military and
students, the Commission included nonimmigrants from the Freely
Associated States of the Federated States of Micronesia, the Republic of
the Marshall Islands, and the Republic of Palau. As recently as 2008,
there were estimated to be 12,215 persons living in Hawaii who were
classified as Compacts of Free Association (“COFA”) migrants. See U.S.
Dep’t of Commerce, Final Report, 2008 Estimates of Compact of Free
Association
(COFA)
Migrants
at
3
(Apr.
http://www.uscompact.org/FAS_Enumeration.pdf.
2009),
This
available
at
constitutes
approximately one percent of the population of Hawaii. From 2003 to
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2008, the number of COFA migrants living in Hawaii grew from
approximately 1/2 a percent of total population to 1 percent of total
population.
U.S. Gov’t Accountability Office, Compacts of Free
Association: Improvements Needed to Assess and Address Growing
Migration,
at
17
(Nov.
2011),
http://www.gao.gov/assets/590/586236.pdf.
available
at
In 2003, ten percent of
COFA migrants living in Hawaii cited medical reasons justifying their
migration. Id.
at
17-18. The
State
treats
COFA
migrants
“nonimmigrants” who are but temporarily in Hawaii.:
COFA Residents are “nonimmigrants” who do not fall within
any of the qualified alien categories and thus are not eligible
for federal benefits under Medicaid. The Compacts for Free
Association allow citizens of the Freely Associated States
(FAS) to enter the United States as “nonimmigrant[s].” Pub.
L. No. 99-239 § 141. A nonimmigrant alien is a person
admitted to the U.S. for a temporary period of time and for a
specific purpose, as set forth in the Immigration and
Naturalization Act. 8 U.S.C. § 1101(a)(15). Examples of
“nonimmigrants”
are
representatives
of
foreign
governments, foreign students, and tourists. Id.
Under the immigration laws, “nonimmigrants” (including
COFA Residents) are considered to have their permanent
residence outside the United States and to be in this country
only temporarily. The Department of Homeland Security has
confirmed that citizens of the FAS “may reside, work and
study in the United States, but they are not lawful
permanent residents.” (U.S. Citizenship & Immigration
Servs., Fact Sheet: Status of the Citizens of the Freely
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Associated States of the Federated States of Micronesia &
the Republic of the Marshall Islands, Ex. A at 4-5, and Fact
Sheet: Status of Citizens of the Republic of Palau, Ex. B at
3.).
State of Hawaii’s Memorandum in Support of Motion to Dismiss at 9,
Korab v. Koller, Civ. No. 10-483 JMS/KSC (Sep. 9, 2010). Like the
108,767 servicemembers, families, and students extracted by Hawaii,
COFA migrants were included in the census count of Hawaii’s actual
population. However, unlike the extracted classes, COFA migrants were
not extracted by the 2012 Plan, but rather were included in Hawaii’s
“permanent resident” population. In other words, the State counted as
part of the population for reapportionment purposes (1) transients, who
were (2) numerous; and (3) do not vote. But the 2012 Plan made no
effort to identify and extract this class.
The immigrant population in Hawaii has undergone a 52.6%
growth from 1990 to 2010, and Hawaii’s illegal alien population is
estimated to have gone through a 700% increase in the fifteen years
from 1990 to 2005. As of 2008 (four years ago), it was estimated at
35,000. See Jeffrey S. Passle, D’Vera Cohn, A Portrait of Unauthorized
Immigrants in the United States (Apr. 14, 2009), available at
http://www.pewhispanic.org/files/reports/107.pdf.
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immigrant population grew by 52.6% between 1990 and 2010, id. at 39,
and its illegal immigrant population by 700% in the same period. Id. at
34. Hawaii’s illegal alien population is said to constitute 3.4% of the
total population in 2004. Id. Yet, like COFA migrants, the 2012 Plan
made no effort to identify and extract this class.
Thus, the State has not met its burden of showing that its
exclusion of servicemembers, their families, and students is anything
but a selective imposition of its criteria. According to the State,
“transients” must not be counted because they are not sufficiently tied
to the islands to be considered permanent residents. Yet the State
includes a significant population of such transients. Non-voters must
not be counted according to the State, because they may skew equal
voting power. Yet, the 2012 Plan made no effort to exclude non-voters.
C.
Administrative Ease Is No Excuse For Singling Out
Particular Classes For Extraction
Nor can the State rely upon the fact that servicemembers,
their families, and students are relatively easy to identify because the
military and the universities provide information readily as the
justification for singling them out for extraction. In Carrington v. Rash,
380 U.S. 89 (1965), the Court considered and rejected a similar
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argument in support of a similar kind of conclusive presumption. There,
the state argued it was difficult to tell whether persons moving to Texas
while in military service were bona fide residents. Thus, the state
argued, the administrative convenience of avoiding difficult factual
determinations justified a blanket exclusion of all servicemembers
stationed in Texas. The presumption created there was conclusive—
“’incapable of being overcome by proof of the most positive character.’”
Id. at 96 (citing Heiner v. Donnan, 285 U.S. 312, 324 (1932)). The Court
rejected this “conclusive presumption” approach as violative of the
Equal Protection Clause. While many servicemen in Texas were not
bona fide residents and therefore properly ineligible to vote, many
servicemembers were bona fide residents. Since “more precise tests”
were available “to winnow successfully from the ranks ... those whose
residence in the State is bona fide,” conclusive presumptions were
impermissible in light of the individual interests affected. Id. at 95.
“States may not casually deprive a class of individuals of the vote
because of some remote administrative benefit to the State.” Id. at 96;
see also Dunn, 405 U.S. at 350-51.
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The State cannot single out the military and students because it is
administratively expedient to do so; it has demonstrated it is more than
willing to forego its claimed constitutional concerns (preventing
numerous, identifiably transient non-voters from skewing voting
populations and thereby denigrating the equal voting power principle),
by allowing statistically significant numbers of State-defined transient
non-voters to be counted as part of the State’s population for
apportionment purposes. What this means is that the State is not
carrying out its claimed purpose of protecting the equal voting power
principle, but instead appears to be assuming that Burns gave the State
carte blanche to define servicemembers and their families as transients
for all time, and thereby deny fundamental rights to individuals who
have earned the right to be represented by the government they have
made it their occupation to serve. “The uniform of our country ... [must
not] be the badge of disfranchisement for the man or woman who wears
it.” Carrington, 380 U.S. at 97. If indeed the State’s extractions are
predicated upon overarching concerns to protect equal voting power, it
need only structure the districts at issue to accommodate the military
presence therein. Having made no effort to do so, the State cannot be
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heard to argue, in advance of such attempts, that the “extracted”
districts currently in existence must forever dictate the fundamental
constitutional rights of their inhabitants.
Moreover, the State’s justifications for its presumptive extractions
of both military and students do not meet its burden. Requiring
predefined residency status as a predicate for equal representation is
unacceptable, yet by basing extractions upon the definition of domicile
in a tax form, and payment of out of state tuition, that is exactly what
the State is doing:
It may well be true that new residents as a group know less
about state and local issues than older residents; and it is
surely true that durational residence requirements will
exclude some people from voting who are totally uninformed
about election matters. But as devices to limit the franchise
to knowledgeable residents, the conclusive presumptions of
durational residence requirements are much too crude. They
exclude too many people who should not, and need not, be
excluded. They represent a requirement of knowledge
unfairly imposed on only some citizens. We are aware that
classifications are always imprecise. By requiring
classifications to be tailored to their purpose, we do not
secretly require the impossible. Here, there is simply too
attenuated a relationship between the state interest in an
informed electorate and the fixed requirement that voters
must have been residents in the State for a year and the
county for three months. Given the exacting standard of
precision we require of statutes affecting constitutional
rights, we cannot say that durational residence
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requirements are necessary to further a compelling state
interest.
Dunn, 405 U.S. at 360. When affecting the constitutional right to
representation, the State cannot take a presumptive approach to
extractions.
D.
The Plaintiffs Were Injured By The Extractions
The Plaintiffs have standing to assert the State has not satisfied
its burden of showing it may constitutionally exclude 108,767 persons
from the population.
First, they are residents of Oahu, which because of the extraction,
had one Senate seat move to the Big Island. With an additional Senate
seat on Oahu, the Oahu districts would have been drawn differently.
See Order Denying Plaintiffs’ Motion for Preliminary Injunction at 13
(May 22, 2012) (Doc. 52) (“But if this group is excluded, then Oahu
residents (and residents in an Oahu district with large concentrations of
non-resident military) may have diluted representation.”) (emphasis
original) (citing Garza, 918 F.2d at 774); Chen v. City of Houston, 206
F.3d 502, 525 (5th Cir. 2000)). Every resident of Oahu has been injured
by the 2012 Plan, and Oahu residents have standing because the
shifted Senate seat impacts every Oahu senatorial district.
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Second, the Plaintiffs reside in districts where extracted persons
also reside, which means that in Plaintiffs’ districts, because of the
extractions, there are a greater number of district residents competing
for the attention of their representative. These are both direct injuries
in fact that would be remedied by a decision that overturns the State’s
extractions. In the case of the Lasters (and particularly Mr. Laster), this
is an even greater injury because she was likely extracted despite
meeting the State’s criteria for “permanent resident.” The fact that
Ms. Laster voted does not, as the State claims, somehow remedy the
injury she has suffered as a result of her extraction. She has been
treated by the State as an assumed non-voter, and assumed nontaxpayer, when she is neither. As a direct result of the State’s
extraction, Ms. Laster was not counted for apportionment, meaning
that like Plaintiffs Kostick, Takai, Bronstrom, Veray, Walden, and
Gayagas, her right to equal representation has suffered. The fact that
she was extracted despite the fact that she actually participated in the
election process, means only that she was injured more deeply, not less.
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IV.
PageID
CONCLUSION
The State has not met its high burden to justify excluding nearly
8% of its actual population from its population basis, and treating
servicemembers, their families, and college students as if they do not
exist. Nor has the state met its burden to justify its no “canoe district”
rule, a rule which results in the gross deviations present in the 2012
Plan. This court should grant summary judgment to the Plaintiffs on
Counts I and II of their First Amended Complaint.
DATED: Honolulu, Hawaii, November 19, 2012.
Respectfully submitted,
DAMON KEY LEONG KUPCHAK HASTERT
/s/ Mark M. Murakami
ROBERT H. THOMAS
ANNA H. OSHIRO
MARK M. MURAKAMI
Attorneys for Plaintiffs
JOSEPH KOSTICK, KYLE MARK TAKAI,
DAVID P. BROSTROM, LARRY S. VERAY,
ANDREW WALDEN, EDWIN J. GAYAGAS
ERNEST LASTER, and JENNIFER LASTER
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